State v. Smalls

• Decision Date: 19 July 1914
• Docket Number: 8907.
• Citation: 82 S.E. 421,98 S.C. 297
• Parties: STATE v. SMALLS.
• Court: South Carolina Supreme Court

82 S.E. 421

98 S.C. 297

STATE v. SMALLS.

No. 8907.

Supreme Court of South Carolina

July 19, 1914

Appeal from General Sessions Circuit Court of Charleston County; H F. Rice, Judge.

Allen Smalls was convicted of arson, and he appeals. Reversed and remanded.

Logan & Grace and John I. Cosgrove, all of Charleston, for appellant.

Frank F. Herndon, of Charleston, for the State.

WATTS J.

The defendant was indicted for arson, charged with burning a gin house. The case was called for trial before his honor, Judge Rice, and a jury. A motion was made to quash the indictment on the ground that it was signed by F. F. Herndon, acting solicitor, and not by the duly elected and qualified solicitor of that circuit; the contention being that the indictment was void ab initio, there being no such officer as acting solicitor, and that there was no vacancy in said office of solicitor, and the appointment could only be made as provided for by section 722 of the Code of Laws of S.C. by appointment by the Governor and confirmation by the Senate. The motion was overruled and defendant put on trial and set up as a defense the plea of alibi. The jury returned a verdict of guilty with recommendation of mercy. Defendant moved for a new trial, which was refused, and sentenced to imprisonment for ten years. After sentence defendant appealed and asks reversal.

The first four exceptions allege error in not quashing indictment on the grounds asked for. These exceptions are overruled for the reason that it appears that on February 9, 1914, his honor, Judge Rice presiding at the court of general sessions for Charleston county, passed an order appointing F. F Herndon, Esq., acting solicitor for that term, by reason of the fact that the solicitor, the Honorable John H. Peurifoy was unable to attend court and perform the duties of his office on account of illness. His honor clearly had the right under the circumstances to make the appointment for the purposes indicated in his order in the interest of justice and the orderly administration of the same in order that the court might proceed with business and the trial of persons charged with violation of law, and these exceptions are overruled.

The third exception as to the judge's charge to the jury is as follows:

"Because his honor, the presiding judge, erred, it is respectfully submitted, in charging the jury as to the defense of alibi: 'Now, Mr. Foreman and gentlemen of the jury, I think I may say it, and I am going to say it anyhow that alibi is always to be received with caution, the defense of alibi, but when it is made out then it is a complete defense.' The error being that his honor invaded the province of

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